155 / 610
153
B. Rejection of Arguments that Used Obligations from Human
Rights Instruments as a Defence
In several cases, investment tribunals were confronted with the argument that
the state was forced to adopt particular measures in order to fulfil its human rights
obligations. Throughout the cases, the structure of arguments varied and so did the
law the states asked the tribunals to apply; the common denominator was that the
need to comply with human rights was used as a defence against alleged breaches of
investment treaties.
In the cases
Sempra v Argentina
,
Vivendi v Argentina
and
InterAgua v
Argentina
,
Argentina maintained it adopted the measures in question in order to safeguard
human rights and constitutional order.
67
It based this argument on the principle of
state of necessity created by customary international law, respective provisions of the
BIT,
68
and in one case on the constitution.
69
State of necessity is a concept of international customary law developed as states
claimed that in extraordinary situations, they should be able to adopt legislation to
react to solve them without incurring liability for this legislation towards investors.
70
The principle was restated in Art 25 of the Draft articles on Responsibility of States for
Internationally Wrongful Acts
71
(“ILC Draft Articles”). Conditions of its application
are strict; necessity may not be invoked unless the measures are ‘the only way for
the State to safeguard an essential interest against a grave and imminent peril,’
72
and
‘[do] not seriously impair an essential interest of the State or States towards which
the obligation exists, or of the international community as a whole;’
73
and unless ‘the
international obligation in question excludes the possibility of invoking necessity,’
74
and ‘the State has contributed to the situation of necessity‘.
75
The tribunal in all of the cases
tested the situations against these conditions and
found they were not satisfied.
76
This is not very surprising; the conditions are strict
and difficult to achieve. The provisions in the BITs did not help the state’s effort either.
In
Vivendi v Argentina
, the tribunal ruled that the BITs in question did not contain
any provision under which a state of emergency would release the state from its BIT
67
Sempra v Argentina
(n 38) [325];
InterAgua v Argentina
(n 40) [232];
Vivendi v Argentina
(n 39) [252].
68
Sempra v Argentina
(n 38) [365];
Vivendi v Argentina
(n 39) [266].
69
Sempra v Argentina
(n 38) [328].
70
Dolzer and Schreuer (n 1) 166.
71
International Law Commission,
Draft Articles on Responsibility of States for Internationally Wrongful Acts
(2001) Supplement No 10 (A/56/10).
72
ibid art 25(1)(a).
73
ibid art 25(1)(b).
74
ibid art 25(2)(a).
75
ibid art 25(2)(b).
76
InterAgua v Argentina
(n 40) [238] – [241];
Sempra v Argentina
(n 38) [352] – [355];
Vivendi v Argentina
(n 39) [260] – [263].